Four-year-old Curtis Modrow almost became a drowning statistic last Christmas Day. His family invested thousands in a new pool fence, but it did little to stop him from wanting to take an unsupervised splash.

"We were some distance away," begins 43-year-old Sandy Behrens.

"He put his hands through the pool gate, undid
the latch and pushed through. Then he stepped up onto the ladder."

The pool has a constant depth of 1.1 metres, which is greater than Curtis' height. He could have become one of the 30 children under five who drown in Australia each year.

"Mum saw and she ran to him ... It's lucky it's an above ground pool."

Video: Clark Rubber Pool Fence Fail – 4-year-old foils it

The Be-Safe Portable Pool Fence by Hunter Products is sold exclusively by
Clark Rubber. The description claims it complies with Australian standards,
and that it features a "self-closing and latching safety gate, high
strength reinforced metal posts
... and see-through mesh sections".

The experts, government organisations, retailers and testers contacted by
CHOICE disagree on whether the pool fence is capable of keeping children out of
backyard pools, where approximately half of all drownings happen.

Sandy's mum spent almost $2000 on the portable pool fence and its
extension kits. But after seeing Curtis open it – easily sticking his arm
behind the gate to unclasp its latch – she contacted Clark Rubber to tell
them other children may be at risk.

"The pool fence was immediately removed from sale to allow a complete investigation to be conducted," says Anthony Grice, a general manager at Clark Rubber.

He says the company took the complaint seriously and commissioned another round of testing by an independent laboratory.

"Following this rigorous testing we are confident that the product meets the standards, and that this issue is an isolated incident related to individual product installation," he says.

Clark Rubber – as well as the manufacturer, Hunter Products – offered to
inspect the fence to make sure it had been installed correctly. Sandy, who
is a consulting engineer, has been overseas and wants to be present during
the inspection.

Pool regulations are enforced by local councils. A local council officer who inspected the pool fence says it is insufficient and ordered the pool to
be emptied until a new fence can be installed.

The pool fence received similar criticism from a Queensland-based inspector, who was asked by CHOICE to review its specifications.

"It didn't take me long to realise there's a major problem with it," says
John Dimmock of My Pool Inspections, who has inspected pool fencing since
2010.

The safety standard requires the latch to be at least 1200mm from the
ground, but he says in Queensland it must be 1500mm.

Sandy measured the height of the latch to be 870mm.

Photo: Sandy measuring the height of the fence's latch, along with a separate photo of the measurements.

"It's ridiculous. If I came across it, it would be a major non-compliance.
It should absolutely not be on sale," Dimmock says. "It's not safe."

CHOICE has previously tested pool fences to the Australian safety standard.
A qualified tester examined the report produced by the testing lab and says
the pool fence was only partially tested to safety standard AS 1926.1-2012.

Crucially, the tester says, it did not cover a key clause intended to stop
children from accessing the latch.

The lab commissioned by Clark Rubber to test the fence published its findings in a report. The photos in it reveal the fence's parts were tested separately, but the gap Curtis used to open the gate only exists when the separate parts are connected.

"We've sold just over 100 of them," says Luke Hunter, the national sales
manager at manufacturer Hunter Products. He says the Be-Safe pool fence has been on sale for two years.

The fence is now being sold with a revised instruction manual that explains how
the components can be installed closer together. CHOICE asked Hunter Products for some
evidence to substantiate the claim that the gap can be reduced to a
centimetre, but it hasn't been provided.

Did you know that in Australia even inflatable pools are subject to fencing laws? See our pool fence buying guide for more on what to look for to keep your kids safe.

Pool fences in Queensland are regulated by the Queensland Building and
Construction Commission (QBCC). The state-government body issued a warning on pool compliance in early January.